The court emphasized that the grant of maintenance, even in the case of a divorced woman, is a matter of discretion, to be used in a judicial manner, in advancement of the purpose underlying the section.

1. The petitioner is the respondent in a proceedings for maintenance filed by the respondent. The petitioner married the respondent on 16 9 62. A child was born to them in the wedlock. Alter the birth of the child, the respondent filed M C.15 of 1967 alleging that the petitioner was neglecting to maintain her and the child. By the time the above petition came up for disposal, H.M.A. 18 of 1967 had been filed by the petitioner against the respondent for restitution of conjugal rights, in the Sub Court, Trivandrum. The plea put forward by the respondent was that the petitioner had married a woman by name, Omana and was living with her. The Additional First Class Magistrate, who disposed of M.C 15 of 1967 observed:

"The main evidence to prove second marriage of C. P. is that of pw.1 and pw. 3. Both these witnesses are examined in HMA.18/67 of Sub Court, Trivandrum which is a suit instituted for restitution of conjugal rights by CP. against the petitioner and that suit is pending disposal. Their evidence has to be evaluated and appreciated by the Civil Court Viz„ Sub Court, Trivandrum and it will settle finally oneway or other of the conjugal rights of both parties and, therefore, I consider it is not proper and as well unnecessary to discuss and appreciate their evidence in this case for coming to the conclusion whether the CP. has married another woman and under what all circumstances the petitioner is led to live separate from the CP. and I therefore keep this point open without finding and the petitioner will be at liberty to seek remedy in the light of the order in HMA.18/67 of Sub Court Trivandrum".

It would appear that HMA.18 of 1967 was allowed. Aa there was non compliance of the order therein, the petitioner filed OP. (H.M.A.) 6 of 1972 for dissolution of his marriage with the respondent. The petition was allowed on 216 74. The respondent thereafter filed M.C. 5 of 1975 against the petitioner for maintenance under S.125 of the Code of Criminal Procedure. The petitioner in his counter denied his liability to maintain the respondent on the ground that while the marriage was subsisting, she refused to live with him for no valid reason. The order in M.C. 15 of 1967 was also setup as a bar for the claim of maintenance. The contention was that since the court disallowed maintenance to the respondent in the above proceedings, there was issue estoppel and it was not open to her to claim maintenance after the divorce was effected. The other contentions raised are not relevant to this enquiry. The Chief Judicial Magistrate, Trivandrum, who disposed of the petition overruled the objections of the petitioner and allowed maintenance at the rate of Rs. 45/- per month to the respondent. The said order was confirmed in revision by the Second Additional Sessions Judge, Trivandrum. The quashing of the above order is sought under S.482 of the Code of Criminal Procedure.

2. S.125 so far as it has application to the instant case reads: "125. Order for maintenance of wives, children and parents (1) If any person having sufficient means neglects or refuses to maintain (a) his wife, unable to maintain herself, or

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(d) a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife Explanation: For the purposes of this Chapter

(a) xxxxx

(b) "wife" includes a woman who has been divorced by, has or obtained a divorce from, her husband and has not remarried.

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(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due

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Provided further that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground f